Lowseth v. State
| Decision Date | 02 June 1994 |
| Docket Number | No. 93-184,93-184 |
| Citation | 875 P.2d 725 |
| Parties | Scott Bradley LOWSETH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Deborah Cornia, Asst. Public Defender, Gerald M. Gallivan, Director, Defender Aid Program, and Robert M. Vang, Student Intern, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Theodore E. Lauer, Director, Prosecution Assistance Program, and Lori K. Bohlender, Student Intern, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
A Sweetwater County jury convicted Scott Lowseth (Lowseth) of aggravated assault stemming from an armed standoff with Sweetwater County Sheriff's officers. In this appeal, Lowseth seeks reversal of his conviction, arguing: (1) six of the written jury instructions were never returned to the trial court, (2) the trial court lacked jurisdiction due to a defective criminal information, and (3) the trial court improperly refused to further instruct the jury during its deliberations.
We affirm.
Lowseth presents the following arguments:
I. The failure of the clerk of court to deliver six (6) written jury instructions to the trial court with the jury verdict, as required under Wyoming Statute 7-11-201(a)(vi), constituted plain error.
II. The trial court lacked jurisdiction over the defective information and the State cannot use a bill of particulars to amend a criminal information, where the bill of particulars changed the nature of the crime.
III. A defendant cannot be convicted of using an "actual threat of physical injury during the act of employing a deadly weapon," when the trial court fails to instruct the jury on the meaning of "threatens to use," after the jury asks for additional instruction.
During the afternoon and evening of June 16, 1992, Lowseth and his boss went to two bars where they consumed a number of mixed drinks and beers. Later that evening, at around midnight, Lowseth and his boss went to Lowseth's trailer, where they continued drinking. At approximately 2:00 a.m. on June 17, 1992, Lowseth began shooting his .357 colt revolver inside his trailer. Lowseth, distraught over his father's recent death, would aim the gun at himself and then move the gun before firing. Around 5:45 a.m., Lowseth phoned 911 and reported that shots had been fired in his trailer. Several sheriff officers were dispatched as well as the county's Tactical Response Team.
Around 6:40 a.m. that morning, the negotiator for the Tactical Response Team contacted Lowseth using a cellular phone. During these phone conversations with the negotiator, Lowseth made a number of expletive-filled statements including,
I can see them [expletive] out there with those rifles and those scopes. I've got more than they have in here. I've got more guns than they've got.
Later that morning, Sweetwater County Sheriff, Gary Bailiff (Sheriff Bailiff), noticed Lowseth peering out through a kitchen window. Around that same time, Sheriff Bailiff summoned Officer Barneski to the sheriff's position. Just before Officer Barneski arrived at Sheriff Bailiff's position, at approximately 8:30 a.m., Sheriff Bailiff heard and saw three shots come out Lowseth's kitchen window and kick up dirt. At the same time, Officer Barneski, while trying to get to Sheriff Bailiff, crawled through a flower bed and over a trailer hitch in an adjacent lot. While climbing over the trailer hitch, Officer Barneski heard two shots and then immediately heard two bullets pass within two to ten feet of him. Officer Barneski then quickly took cover next to Sheriff Bailiff.
After conferring with Sheriff Bailiff, Officer Barneski ordered another officer to shoot tear gas into Lowseth's trailer. Lowseth exited his trailer and was subdued by several officers after the tear gas filled his trailer. The officers discovered a substantial arsenal inside Lowseth's trailer, including two pistols, a revolver, a shotgun and an ample supply of ammunition.
On June 18, 1992, an information was filed charging Lowseth with aggravated assault, which stated:
Lowseth threatened to use a drawn deadly weapon on officers of the Sweetwater County Sheriff's office; contrary to Wyoming Statute § 6-2-502(a)(iii), 1977, as amended * * *.
An affidavit attached to that information stated that Lowseth had fired three shots at Sheriff Bailiff but did not mention any shots fired at Officer Barneski.
On February 3, 1993, after a number of pre-trial hearings concerning Lowseth's competency to stand trial and on motions to dismiss the information, and after several continuances were granted to Lowseth, Lowseth's counsel moved to withdraw. Lowseth's counsel was permitted to withdraw. The State obtained a continuance from this court.
On March 8, 1993, Lowseth's new counsel moved for a bill of particulars asking for the identity of the specific officer whom Lowseth had allegedly threatened. On March 15, 1993, at a hearing on the motion for bill of particulars, the State, for the first time, explained that Officer Barneski was the officer who Lowseth was charged with threatening and that the manner of the threat was the firing of a loaded revolver. The trial court ordered the State to provide a bill of particulars naming the individual officer allegedly threatened by Lowseth and describing the precise manner of the alleged threat. No written bill of particulars appears in the record.
The trial began on March 30, 1993; and, at the close of Lowseth's case, the court read all the instructions to the jury. During deliberations the jury asked the trial court: "In an aggravated assault charge, does the defendant have to see the victim?" The court replied: "I am not permitted to instruct you further." The jury returned a verdict of guilty of aggravated assault. After the jury was dismissed, the clerk of court went to the jury room to collect the written instructions but found that six instructions were missing. Those written instructions were never located, but the court reproduced them for purposes of the record from the transcript and unsigned copies.
Lowseth first argues that the trial court committed plain error because six of the written instructions were not returned with the verdict into the court in violation of W.S. 7-11-201(a)(vi) (1987), which provides:
Before the argument of the case is begun, the court shall immediately, and before proceeding with other business, charge the jury. The charge shall be reduced to writing by the court, if either party request [requests] it. No charge or instruction provided for in this section, when written or given, shall be orally qualified, modified or explained to the jury by the court. All written charges and instructions, shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case. [emphasis added]
Lowseth does not argue that the trial court failed to provide the jury with all the written instructions for its deliberations nor that the jury did not have all the instructions during deliberations. Instead, Lowseth argues that this court must reverse his conviction and remand for a new trial because six written instructions were not returned to the court with the verdict. This claim is premised on our recent decision in Rissler & McMurry v. Snodgrass, 854 P.2d 69 (Wyo.1993), where we held that a trial court had committed plain error when it violated W.S. 1-11-209 (1988) by answering a written question presented to it by the jury during deliberations without reporting it on the record and in open court. Id. at 70-71.
As Lowseth recognizes, because this alleged error was not brought to the attention of the court, we limit our review to a search for plain error. State v. Keffer, 860 P.2d 1118, 1137 (Wyo.1993). The statute is mandatory: "All written charges and instructions, shall be * * * returned with their verdict into court * * *." The reasons for this requirement are twofold: First, to assure that the jury took all the written instructions with them to deliberation, and secondly, to preserve the written instructions for appeal. Clearly, all the written instructions were not returned with the verdict convicting Lowseth. Peering through our "plain error spectacles," however, we find no substantial right of Lowseth's to be adversely affected. Frenzel v. State, 849 P.2d 741, 746 (Wyo.1993).
The trial transcript demonstrates that the trial court read each of the missing instructions to the jury accurately before the jury retired to deliberate. Both counsel agreed at argument that all of the written instructions, including the missing six, were given to the jury and taken to the jury room. Whatever the cause for the loss of six instructions, the fact is that the clerk of court was able to reproduce each of the missing instructions for the record on appeal. The purposes of W.S. 7-11-201(a)(vi) providing for the giving of instructions to the jury are: to require that the trial court charge the jury by reading the written instructions to it; that the jury have the written charge available during its deliberations; and that the charge (instructions) be available and a part of the record for review on appeal. Each of the purposes was accomplished in this case. Therefore there was no plain error that would require reversal.
Lowseth also argues that Bearpaw v. State, 803 P.2d 70 (Wyo.1990) requires a new trial because a necessary part of the record is absent. In Bearpaw, we reversed a conviction and remanded it for a new...
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